Takings international : a comparative perspective on land use regulations and compensation rights / [edited by] Rachelle Alterman ; with Evangelia Balla [and others].
2010
K3511 .T35 2010 (Map It)
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Title
Takings international : a comparative perspective on land use regulations and compensation rights / [edited by] Rachelle Alterman ; with Evangelia Balla [and others].
Published
[Chicago, Ill.] : American Bar Association, Section of State and Local Government Law, [2010]
Copyright
©2010
Call Number
K3511 .T35 2010
Former Call Number
Comp 446 T1896 2010
Edition
First edition.
ISBN
9781604425505 (pbk. : alk. paper)
1604425504 (pbk. : alk. paper)
1604425504 (pbk. : alk. paper)
Description
xxiv, 390 pages : maps ; 23 cm
System Control No.
(OCoLC)496742254
Bibliography, etc. Note
Includes bibliographical references (pages 367-385) and index.
Record Appears in
Added Author
Added Corporate Author
Table of Contents
Preface and Acknowledgments
xix
About the Authors
xxi
pt. I
Takings International: A Cross-National Perspective
1
ch. 1
Regulatory Takings and the Role of Comparative Research / Rachelle Alterman
3
Land Use Regulation and Property Values
3
The Property Rights Debate in the United States
5
The Current State of Comparative Research on Property Rights
6
A Note on Terminology
7
The Purpose of the Book
9
Scope of the Research
9
The Jurisdictions Selected for Study
10
The Challenge of Comparative Research
11
The Research Method
12
A Preview of the Comparative Findings
13
The Book Structure
14
Appendix: Guidelines for Contributing Authors
19
ch. 2
Comparative Analysis: A Platform for Cross-National Learning / Rachelle Alterman
21
Analytic Approach
22
Comparative Approach
22
Three Main Types of Regulatory Takings
23
Constitutional/Human Rights Protection of Property Rights
24
Comparative Overview
25
The Protection of Property under the European Convention
26
Constitutional Property Protection: Cluster 1 Countries
27
Constitutional Property Protection: Cluster 2 Countries
30
Constitutional Property Protection: Cluster 3 Countries
32
Compensation Rights for Major Takings
35
Comparative Overview
35
Major Takings: Cluster 1 Countries
37
Major Takings: Cluster 2 Countries
40
Major Takings: Cluster 3 Countries
44
Compensation Rights for Direct Partial Takings
47
Comparative Overview
47
Direct Partial Takings: Cluster 1 Countries
48
Direct Partial Takings: Cluster 2 Countries
49
Direct Partial Takings: Cluster 3 Countries
52
Compensation Rights for Indirect Partial Takings
62
Comparative Overview
62
Indirect Takings: Cluster 1 Countries
63
Indirect Takings: Cluster 2 Countries
63
Indirect Takings: Cluster 3 Countries
64
ch. 3
Conclusions: The U.S. Property Rights Debate Viewed through Cross-National Lenses / Rachelle Alterman
75
A View of U.S. Regulatory Takings Law through Comparative Lenses
75
Placing U.S. Regulatory Takings Law on the Comparative Scale
77
Oregon's Measure 37 Viewed from the Outside
79
Possible Statutory Models for Further Study
80
Can the Differences Be Explained?
84
An Example of How Comparative Research May Bring About Legislative Revision
86
pt. II
Countries with Minimal Compensation Rights
91
ch. 4
Canada / Melanie R. Bueckert
93
Constitutional Framework for the Protection of Property Rights
93
The 1867 Constitution
93
The Canadian Bill of Rights
94
The 1982 Constitution
95
Implied Constitutional Rights
95
Protection beyond the Canadian Federal Government
96
Provincial Protections
96
Canada's Obligations under the North American Free Trade Agreement (NAFTA)
97
The Interpretive Presumption as Applied to Regulatory Takings Jurisprudence
98
Compensation Denied
99
Property Subset
99
Benefit Directed at Government
100
Compensation Granted
101
Prognosis on the Protection of Property Rights in Canada
102
ch. 5
Australia / John Sheehan
107
A Brief History
108
Constitutional Aspects
108
Basic Grounds for Compensation
109
Types of Compensable Injuries
110
Eligibility to Claim and Government Liability
111
Procedures for Assessment of Compensation Claims
112
The Absence of Compensation Rights for Indirect Injury to Adjoining Land
114
Evaluation: "Taking by Stealth"
114
ch. 6
United Kingdom / Michael Purdue
119
Historical Background
119
Interference with Existing Planning Rights
120
Orders Requiring the Discontinuance of an Existing Use, Limitations to That Use, or the Removal or Alteration of Buildings
120
Revocation and Modification of Planning Permissions That Have Not Yet Been Implemented
121
Voiding a Permit through Judicial Review (with No Compensation Rights)
122
Purchase Notices
123
The Correct Unit of Land
123
No Need to Show Causation and Need to Apply for Planning Permission
124
The Meaning of "Incapable of Reasonable Beneficial Use"
124
Planning Blight and Injurious Affection
125
Blight Notices
125
The Qualifying Land Designation
125
The Qualifying Interests
126
Proof of Injury
126
The Process
126
Injurious Affection
127
Injurious Affection Because of Severance of Land
127
Injurious Affection Caused by the Construction of Public Works Even if No Land Is Taken
128
Rights to Compensation under the Land Compensation Act 1973
129
The European Convention on Human Rights and the Human Rights Act 1998
130
Evaluation
133
ch. 7
France / Vincent A. Renard
139
Zoning during the 1930s: The Revolt of Landowners against Zoning
140
The General Exceptions to the Basic Principle of Noncompensation
140
The Context of a Decentralized Planning System after the 1980s and Its Consequences on the Question of "Windfalls for Wipeouts"
142
An Ambiguous Device: Transfer of Development Rights, the French Way
143
Compensation through the Inverse Condemnation Principle
145
Some Specific Compensation Devices
146
Evolution of European Jurisprudence
147
ch. 8
Greece / Evangelia Balla
149
The Takings Issue in the Greek Planning Context: General Overview
149
The Constitutional Framework
151
The Greek Constitution
151
The Impact of the European Court of Human Rights on Greek Takings Law
154
Types of Regulatory Takings
155
Regulatory Takings in Areas Covered by Town Plans
156
Long Delays in the Completion of the Expropriation Process for Public Open Spaces
156
Long Delays in the Declaration of Expropriation for Land Designated for Public Service Buildings or Uses
157
Temporary Freeze of Development Rights
158
Regulatory Takings in Areas Not Covered by Town Plans
159
Restrictions on the Use of Property Located in Zones of Urban Development Control
159
Restrictions on the Use of Property for Land Located within Zones of Nature Conservation
160
Judicial Remedies and Statutory Regimes for Compensation
162
Conclusion: Evaluating Current Laws and Practices
163
pt. III
Countries with Moderate or Ambiguous Compensation Rights
169
ch. 9
Finland / Kauko Viitanen
171
Constitutional and Statutory Basics
172
The Constitutional Protection of Property Ownership, Land Use Restrictions, and the Convention for the Protection of Human Rights and Fundamental Freedoms
172
Legislation on Expropriation
173
The Requirements for Compensation for Land Use Restrictions
174
The Amount of Compensation
175
Types of Land Use Restrictions
176
Direct Injuries
176
Indirect Injuries
177
Planning Practice
177
The Legislative Requirements for Land Use Restrictions and Compensation
178
Land Use Planning Legislation
178
Content Requirements of Land Use Plans
178
Legal Effects of Land Use Plans on Landowners
179
Compensation
180
Specific Types of Land Use Restrictions
182
Protection of Buildings
182
Nature Conservation
183
Power Lines
183
Public Roads
184
Planning Practice, Evaluation, and Prospects
185
ch. 10
Austria / Karin Hiltgartner
195
The Austrian Constitutional Law on the Right to Property and Compensation Rights
195
An Introduction to the Austrian Planning System and Its Influence on Land Values
196
The Law on Compensation for Reduction of Development Rights in Each of the Austrian States
198
Burgenland
201
The Tyrol
201
Carinthia
202
Vorarlberg
202
Lower Austria
204
Upper Austria
204
Salzburg
205
Steiermark
206
Vienna
207
Comparison across the States: Shared Bases in Legislation and Jurisprudence
208
Shared Bases for Compensation Claims Set in the Legislation
208
Interpretation by the Courts
209
Comparison among the States: Differences
209
Direct Investments
210
Loss in Value Compared to Price Originally Paid
210
"Special Sacrifice" Compared with Surrounding Plots
211
"Redemption Right"
211
Compensation Rights That Apply through Private Law
211
Additional Restrictions
211
Differences in Procedures
212
The Role of Judicial Review and Compensation Claims in Practice
212
ch. 11
United States / Thomas E. Roberts
215
A Brief History
215
The Tests Applied
216
Economic Deprivations as Regulatory Takings
217
Total Economic Deprivations
217
Partial Economic Deprivations
218
Selecting the Relevant Unit of Property against Which to Measure Loss
221
Moratoria
221
Physical Occupation Resulting from Regulation
222
Government Actions Indirectly Diminishing Property Value
223
Severance Damage in Direct Condemnations
224
State Legislative Taking Statutes
224
Compensation: Permanent or Temporary Taking, the State's Choice
225
Evaluation and Future Directions
225
ch. 12
The Special Case of Oregon: The Heated Debates Regarding Measures 37 and 49 / Bianca Putters
229
History and Background
230
Constitutional Issues
231
Measure 37
232
Main Grounds for Claims
234
Measure 37 Claims
235
Location and Scope of Claims
235
Procedures
238
Ripple Effect on Other State Legislative Initiatives
238
Measure 49
239
Evaluation: What Lessons Does the Measure 37 Saga Hold?
242
pt. IV
Countries with Broad Compensation Rights
247
ch. 13
Poland / Miroslaw Gdesz
249
Historical Background
250
Polish Building Decree of 1928
250
Planning Decree 1946
250
Communist Planning from 1961 to 1990
250
The Land Management Act of 1994: The First Stage of Reforms
251
Constitutional Rules and International Convention Aspects
252
Protection of Property Rights Rule
252
Expropriation and Regulatory Takings
252
The Just Compensation Rule
253
The European Convention of Human Rights
254
Introduction to the Polish Planning System and Types of Compensable Decisions
255
Compensable Direct-Planning Injuries
256
Planning Expropriation (Loss of All or Most Value)
256
Legal Framework According to the Land Planning and Management Act of 2003
256
The Acquisition Claim According to Environmental Protection Law
258
Compensation for Partial Decline in Value
258
Compensation for Indirect Injuries
260
Injurious Affection and Severance Due to the Expropriation of a Part of a Plot
260
Injury Stemming from an Expropriation of an Adjacent Plot
261
Planning Decisions Regarding an Adjacent Plot (Unrelated to Expropriation)
261
Procedural Aspects of Compensation Claims
262
Authorities Responsible for Compensation
262
Entitlement to Compensation
263
Time Limit of Claims
263
Information for Landowners
264
Procedure for Making a Claim and Appealing a Decision
264
The Burden of Proof
265
Conclusions
265
ch. 14
The Federal Republic of Germany / Gerd Schmidt-Eichstaedt
271
Constitutional Aspects
271
Types of Planning Decisions and Related Compensation Rights
272
Types of Plans
272
Withdrawal of the Currently Permitted Land Use
273
Designation for Public Purposes
273
The Rights of Landowners When a Private-Type Land Use Is "Downzoned"
275
Compensation for Expenses Incurred While Relying on Government Policy (Breach of Faith)
278
Revocation of a Valid Building Permit or Denial of a Variance or Exception
279
Temporary Damages During the Construction of Public Works
279
Temporary Suspension of the Permitted Use and Development Rights
280
Development Moratorium for an Interim Period of up to Four Years
280
The Differences in Compensation Rights between Official and Unofficial Freeze Decision: A Critique
281
Conditions on the Grant of Building Permits (Awaiting Infrastructure)
282
Automatic Expiration of a Temporary Land Use Designated in a B-plan
283
Postponement in Granting a Building Permit and Interim Prohibition for a Maximum Period of One Year
283
Compensation for Indirect Injury by an Adjacent Public Use
284
Reduction of the Value of the Remaining Part after Expropriation of Part of a Property
284
Injury from Adjacent Land Designated for a Public Purpose
284
Injury Caused to a Neighboring Private Landowner by a New Private Use
285
The Rise in Property Values and Its Relationship with the Right to Compensation
286
Procedures and Other Matters
287
Burden of Proof
287
The Types of Land Tenure That Are Entitled to Compensation Rights and the Issue of Transferring Claims to Future Buyers
287
Time Limits for Making Compensation Claims
287
The Right to Information: Must the Authority Inform the Affected Property Owner Directly?
287
Judicial Authorities
288
Which Administrative Level Must Pay the Compensation?
288
Nonfinancial Forms of Compensation
288
Planning Practice and Final Evaluation
289
ch. 15
Sweden / Thomas Kalbro
293
The Constitutional Context
293
The Basics of Compensation Rights
294
Compensation Principles in Case of Expropriation
294
Compensation Principles for Restrictions on Land Use
295
Compensation for "Environmental Injuries" Caused by the Use of an Adjacent Property
296
Compensation in Cases of "Exceptional Injury" to the Remainder of Property
297
Introduction to the Swedish Planning and Permit System
297
The Detailed Development Plan
298
Permits
298
An Overview of the Various Situations That May Envoke Compensation Rights and the Differences Among Them
299
Compensation Rights Related to the Adoption, Amendment, or Annulment of Detailed Development Plans
300
Adoption of a New Plan
300
Protection of Valuable Buildings or Areas
300
Demolition Prohibition for Protected Buildings
302
Special Order Regarding Access to a Public Area (e.g., Roads)
302
Compensation Rights When a Plan Is Amended or Repealed during the Implementation Period
303
Compensation Rights When a Plan Is Amended after the Implementation Period (re Unbuilt Development Rights)
303
Exceptions When There Are Compensation Rights
304
Changes in the Alignment of Public Streets and Roads
304
Implications for Compensation for Land Acquisition
305
Compensation for Refusals to Grant Permits
305
Replacement of Demolished Buildings
305
Refusal to Grant a Demolition Permit
306
Refusal to Grant a Site Improvement Permit
307
Compensation Claim Procedures and Negotiated Practices
307
Evaluation
308
ch. 16
Israel / Rachelle Alterman
313
A Brief History
314
Constitutional Law
315
The "Unwritten Constitution" and the Status of Property Rights
315
The Basic Law---Human Dignity and Liberty
315
Why the Dramatic Rise in the Number of Claims?
316
The 1965 Planning and Building Law and Its Interpretation by the Courts
317
Section 197: Establishing the Grounds for a Compensation Claim
318
Preconditions for Making Compensation Claim
319
The Burden of Proof
319
Who May Submit a Claim?
319
What Types of Planning Decisions Are Grounds for Compensation?
319
How Are Landowners to Be Informed?
321
What Is the Time Limit?
321
The Definition of Injury and Its Implications
322
What Is an Injury? The Basic Rule
322
Should Land Values Reflecting Expectations for "Upzoning" Be Taken into Account?
323
Should Site-Specific Circumstances Be Taken into Account?
323
Person-Specific Injuries and Injury to Commercial Enterprise
324
Is There Need to Demonstrate a Real "Out-of-Pocket" Loss?
324
The Relationship between Compensation for a Regulation and for an Expropriation
325
The Problem
325
The Two-Stage Compensation Doctrine
326
Do Landowners Have the Right to Oblige the Authorities to Expropriate?
326
Indirect Injuries to Neighboring Properties
326
The Varon Case
327
After the Varon Decision: The Vitner Doctrine
329
Implications for National Infrastructure
330
Who Should Pay the Compensation?
330
The Division of Responsibilities between Government Levels
330
The Practice of Requiring Reimbursement Commitments from Developers
331
Section 200: Exemptions from the Obligation to Pay Compensation
331
The Three Conditions of Section 200
332
The Relationship between the Two Parts of Section 200
333
The Jurisprudence on "Reasonableness" and "Fairness"
333
The Horowitz Case
334
Following the Horowitz Ruling
334
Uncertainty Remains
335
What Can Be Learned from the Israeli Case?
335
ch. 17
The Netherlands / Fred Hobma
343
The General Framework for the Protection of Property under European International Law and Dutch Law
344
European International Law
344
Dutch Law
344
Planning Compensation, Obligation to Consent, and Expropriation
345
Fully Private Use and the Right to Planning Compensation
345
Obligation to Consent (Shared Use as Public Easements)
345
Absolute Public Use (Expropriation)
346
Similarities and Differences
347
The Law Regarding Planning Compensation Rights
348
Some Facts about Claims in Practice
350
Procedural Aspects
350
The Evolution of Case Law
351
Steps and Criteria for Determining a Compensation Claim
354
Step One
Is the Damage Really Attributable to Planning?
354
Step Two
Is the New Plan More Damaging Than the Old Plan?
355
Step Three
Can the Damage Reasonably Be Borne by the Aggrieved Party?
356
Agreements by Developers to Reimburse Compensation Claims
358
Practical Example: Compensation Rights for the Expansion of Amsterdam Schiphol Airport
359
Evaluation and Debate
360
Afterword / Daniel R. Mandelker
365
Table of Authorities
367
Name Index
387